Citation Nr: 0904087
Decision Date: 02/05/09 Archive Date: 02/13/09
DOCKET NO. 06-13 369 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to a disability evaluation in excess of 50
percent for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and Dr. W.K.
ATTORNEY FOR THE BOARD
Sara Fargnoli, Associate Counsel
INTRODUCTION
The Veteran had active service from September 1966 to
September 1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a June 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
The Veteran and Dr. W.K. provided testimony at an October
2008 hearing before the undersigned. A transcript of that
proceeding is associated with the claims folder.
Subsequently, in January 2006, the RO increased the
disability evaluation for the Veteran's service-connected
PTSD from 30 to 50 percent disabling effective January 27,
2005. The Veteran was advised of the grant of the increased
rating by letter and by the statement of the case (SOC) dated
in January 2006. However, he did not withdraw his appeal.
In accordance with AB v. Brown, 6 Vet. App. 35 (1993), the
Veteran will generally be presumed to be seeking the highest
rating available, and it follows that a partial grant of an
increased rating does not terminate an appeal.
The Board notes that the record raises an informal claim of
entitlement to a total disability rating based on individual
unemployability (TDIU) due to the Veteran's service-connected
PTSD (see VA Form 9 received in March 2006). However, this
matter is not before the Board and is therefore referred to
the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Board finds that additional development is required
before the issue of entitlement to a disability evaluation in
excess of 50 percent for PTSD can be adjudicated.
Specifically, it is determined that an examination is
necessary, for the reasons discussed below.
In an October 2008 hearing before the Board the Veteran
testified that his PTSD symptoms worsened since his last
private medical evaluation dated in May 2006. Specifically,
the Veteran stated that he had intensified feelings of
depression, experienced a lack of sleep, frequent dreams of
the death of his friends in Vietnam, and that he preferred to
be alone at all times. Moreover, the Veteran's attending
psychologist, Dr. W.K. testified that the Veteran's condition
has worsened over the past two years, to include a secondary
diagnosis of dysthymia. Dr. W. K. further contended that, in
addition to the Veteran's PTSD, he has a "death imprint,"
which is associated with dysthymia, where the Veteran is
focused on the death of his friends. Dr. W.K. also stated
that the Veteran has problems with rage, anger, and guilt,
which have progressively gotten worse since the start of the
Iraq War. Finally, he stated that the Veteran has been
suicidal and has had suicidal ideations. Based on the
aforementioned, an examination is required to determine the
current level of severity of the Veteran's service-connected
PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA
psychiatric examination in order to
determine the current level of severity of
his service-connected PTSD. The claims
folder should be made available to the
examiner for review. Any indicated
evaluations, studies, and/or tests deemed
to be necessary by the examiner should be
accomplished. The examiner is
specifically requested to include in the
diagnostic formulation an Axis V diagnosis
on the Global Assessment of Functioning
(GAF) Scale. The examiner should also
provide an opinion concerning the degree
of social and industrial impairment
resulting from the Veteran's service-
connected PTSD.
All opinions expressed should be
accompanied by a clear rationale consistent
with the evidence of record.
2. Thereafter, readjudicate the Veteran's
claim, with application of all appropriate
laws and regulations, including
consideration of any additional information
obtained as a result of this remand. If
the decision with respect to the claims
remains adverse to the Veteran, he and his
representative should be furnished a
supplemental statement of the case and
afforded a reasonable period of time within
which to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).